Searching for Justice in Post-Gaddafi Libya
Jan Michiel Otto Jessica Carlisle Suliman Ibrahim
Nasser Algheitta Jazia Gebril Amal Obeidi Khalifa Shakreen Mohammed El-Tobuli A Socio-Legal Exploration
of People’s Concerns and Institutional Responses at Home and From Abroad
Report of the AJIDIL Research Project
Published by Van Vollenhoven Institute,
Leiden University
Table of Contents
Foreword vii
Preface viii
Acknowledgements x
Map of Libya xii
Part 1
1 Introduction 3
Jan Michiel Otto
2 Opportunities, Constraints and Dilemmas in Libya’s Search for Justice 14 Jan Michiel Otto
3 Perspectives on Justice in Libya: A Review of International Reports 33 Jessica Carlisle
4 Libya’s Supreme Court and the Position of Sharia,
in the Perspective of Constitutional and Legal History 54 Suliman Ibrahim
Part 2
5 Access to Justice and Legal Aid in Libya:
The Future of the People’s Lawyers 79
Jessica Carlisle
6 The Role of Criminal Defence Lawyers in the Administration
of Justice in Libya: Challenges and Prospects 92
Nasser Algheitta
7 Her Day in Court: The Work of a Judge on Family Law Cases
in Tripoli 104
Jessica Carlisle
8 Developing the Case Against Law 4/1978: Property Claimants in Tripoli 117 Suliman Ibrahim and Jessica Carlisle
9 Compensation for Unlawful Detention under Gaddafi’s Regime 130 Jazia Gebril and Mohammed El-Tobuli
10 From Forced Reconciliation to Recognition:
The Abu Salim Case in Historical Perspective 142
Amal Obeidi
Part 3
11 People’s Problems, Practices and Patterns of Justice Seeking:
Towards a National Knowledge Base 153
Jessica Carlisle and Jan Michiel Otto
12 From Problem of Knowledge to Responsibility to Learn 165 Jan Michiel Otto
13 Conclusions 173
Jan Michiel Otto and Suliman Ibrahim
Annexes
I Additional Report: Libya’s Court Structure 185 Nasser Algheitta and Suliman Ibrahim
II Additional Report: The Role of the Tribe in Libya:
Making the Informal Formal 189
Amal Obeidi
III Additional Report: Justice Seeking in the Case of Abdul Fatah Younis 195 Khalifa Shakreen
IV Chronology of the Formation and Activities
of the ajidil Research Group 199
V Policy Suggestions 201
Jan Michiel Otto and Suliman Ibrahim
About the Authors 205
Bibliography 208
Shortened urls 217
2 0 1
AnnEX V
V Policy Suggestions
Jan Michiel Otto and Suliman Ibrahim
International Community
– Engage with Libya as a long-term commitment, and support the state- building process.
– In doing so assume a “Responsibility to Learn” as a guiding principle, i.e. support the government of Libya in the justice sector on the basis of realistic, domestic, research-based analyses of the justice problems in society and state, rather than on foreign, supply-driven proposals, or impressionistic assumptions.
Government and Parliament (GNC)
– Continue the balanced, democratic, peaceful and law-based approach to all justice issues, and focus on the mandate of managing the “transition” to a constitutional state.
– Prioritise improving security by dismantling the militias, and, where possible, training and integrating them into the regular state army, police, and other security forces.
– Reduce support for “militia justice” by publicising its undemocratic and unjust operations, in close collaboration with civil society organisations.
– Revitalise the transitional justice process and make all voices heard, thus aiming at justice, mutual understanding and reconciliation.
– Prioritise the draft law of transitional justice without further delay, dealing with victims of the Gaddafi regime as well as victims of real or perceived
“revolutionary” militias.
2 0 2
AnnEX V
– Incorporate the Law 4/1978-based conflicts into the wider frameworks of transitional justice.
– Use the upcoming process of constitution making to organise well- informed constructive dialogue about important and sensitive topics, in close collaboration with civil society organisations and universities.
– Consider reform of the Criminal Procedure Code to give more rights to defence lawyers and to enhance judicial supervision of police and prosecution in the pre-trial stage.
Government/ Ministries of Justice and Higher Education – Produce realistic analyses of justice problems in society and state.
– Commission Libyan universities to carry out policy-relevant research projects on access to justice and legal and institutional reform and encourage joint Libyan-international research groups in this area.
– Commission such research projects of three types, i.e. legal research, qualitative socio-legal research, quantitative research, including periodical national surveys.
– Establish a national research institute for law and society studies.
Government/Ministry of Justice and Supreme Council for the Judiciary
– Increase the public confidence of the judiciary and quasi-judicial institutions by making their work more transparent and accountable.
– Ensure that judicial rulings on major socio-political issues are based on well-founded reasons, informed by available academic knowledge, notably from legal and social sciences.
– Apply the annual personnel assessments in the judicial services in ways that promote quality in all sectors.
2 0 3
AnnEX V
– The practice of reappointing malfunctioning judges and public prosecutors as public (previously people’s) lawyers should be ended.
– Retain the possibility of the state-led career system of “judicial institutions”
to provide inter-professional career paths, for example to become first public lawyers, and later judges.
– Reduce frequent transfers of judges as this practice has been found to make the criminal justice system inefficient.
– Establish a systematic training programme for the legal professions, including joint training of judges and prosecutors with public (previously people’s) lawyers, government lawyers, and private lawyers.
– Enable the Higher Judicial Institute to collaborate with law faculties in order to accumulate expertise and to offer quality courses in legal practice and theory, in all regions.
– Provide the police and all legal professionals with training in the field of human rights, due process and fair trial.
– Explore, through pilot projects and research, whether or not
computerisation and certain applications of E-justice might lower the barriers faced by most justice seekers and/or help courts to deal more efficiently with the increasing and accumulating caseload.
– Respect and retain the crucial roles of female judges and lawyers in the legal system, with special reference to their roles in the family circuit courts.
Universities and Research Institutions
– Renew the legal curricula to suit the practical needs of the justice system, with a focus on human rights.
– Engage in outreach activities, such as legal clinics staffed by students, supervised by academic staff, as well as training courses for legal professionals.
2 0 4
AnnEX V
– Create a research environment for alpha and gamma-faculties, which rewards quality research that addresses important social, economic, legal, public administration, and political issues.
– Disseminate findings and interim-findings of such research, so that policy- makers may take the outcomes into account when preparing policies or enacting legislation.
– Encourage qualified Libyan researchers to engage in organised policy dialogues with domestic and international policy-makers.
– Initiate, support and execute research projects on access to justice and institutional development, to provide for a knowledge base for decision- makers. For example
a. Make an accurate assessment of the conflicting claims about the potential of people’s (now public) lawyers through extensive empirical research;
b. Design and assess potential solutions for problems of dispossession of property related to Law 4/1978;
c. Study the actual practices of legal institutions, notably the police, courts, prosecution, and local councils;
d. Study justice-seeking practices in cases of theft and assault, and employment disputes;
e. Research potentially serious but “hidden” injustices, such as gender-based violence and the ways in which various groups of non-Libyan migrant workers (Africans, Egyptians, Tunisians, Bangladeshi, other Asians) are treated.
